Although no official pronouncement has been issued, it appears that EPA Headquarters is looking at resetting the scoreboard for the Portland Harbor Superfund site. EPA had already signaled that it would be reviewing significant, long-unresolved Superfund sites with an eye toward streamlining the process. However, the latest action on Portland Harbor may have the opposite effect, since EPA has not yet involved major stakeholders, including the State of Oregon, City of Portland, Port of Portland, or the tribes.

Portland Harbor is an 11-mile stretch of the Willamette River in industrial Portland. After a 17-year, PRP-led remedial investigation process, at a cost exceeding $110 million, EPA Region 10 issued a Record of Decision (ROD) in the closing hours of the Obama Administration. The ROD itself recognized that the baseline data upon which Region 10 relied in selecting its preferred remedy had grown stale, and called for another site-wide round of sampling prior to any Remedial Design for specific facilities.

EPA now is negotiating with certain, undisclosed private responsible parties on an Administrative Order on Consent (AOC) and a new sampling plan. A review of the current draft drew a sharp response from Oregon Department of Environmental Quality Director Richard Whitman. In a letter dated October 5, 2017 to Acting Regional Administrator Michelle Pirzadeh, Whitman invoked a 2001 Memorandum of Understanding between EPA, the state and tribes on the process for investigation and cleanup of Portland Harbor. The letter criticizes EPA for keeping the state in the dark and demands the opportunity to fully participate in and comment on the new planning work. Similar objections were raised by Governor Kate Brown, the City of Portland and the Yakama Nation.

Director Whitman also voiced substantive concerns with new directions in the draft AOC. These include revisiting assumed fish consumption rates, a “reset of achievable remedy targets/actions,” and a focus on downstream sites with “data gaps” within Portland Harbor itself.

There is much to be critical of in Region 10’s handling of the Portland Harbor site, and revisiting the Region’s conclusions is appropriate. The assumptions driving the cleanup approach, emphasizing removal over natural riverine processes, could cost well over $1.5 billion for questionable environmental benefit. Indeed, had EPA not added Portland Harbor to the National Priority List, Oregon DEQ would likely have implemented a cleanup plan incorporating routine Army Corps of Engineers maintenance dredging of the Willamette River at far less cost. The resulting economic hit to the region will be enormous.

Still, I am reminded of Sen. John McCain’s famous thumbs down vote on bills to repeal and replace the Affordable Care Act. Apart from substantive elements of the bills, Sen. McCain decried the absence of “regular order” in enactment of major legislation. That is, the congressional leadership bypassed the usual committee and collaborative review that identifies and fixes problems with the bill and lends legitimacy to the outcome.

Region 10 has responded well to the criticism. Acting Administrator Michelle Pirzeda, sent a reply letter offering assurances that the state, city and tribes will be involved going forward. The letter sets a deadline of October 24 to submit comments on the draft plan.

While unnecessary confrontation over who may participate in the process is averted for now, the substance of the Portland Harbor reset is likely to be contentious. Watch this space for developments.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.